Benton v. Georgia Marble Co.
| Decision Date | 09 March 1988 |
| Docket Number | 45173,Nos. 45172,s. 45172 |
| Citation | 365 S.E.2d 413,258 Ga. 58 |
| Parties | BENTON et al. v. GEORGIA MARBLE COMPANY. GEORGIA MARBLE COMPANY v. BENTON. |
| Court | Georgia Supreme Court |
J. Littleton Grover, James H. Webb, Jr., Glover & Davis, P.A., Martha Tate Springer, Fine & Block, Paul R. Jordan, Peachtree City, for Lurner O. Benton, III, et al.
Gary W. Hatch, John G. Parker, John L. Watkins, Hansell & Post, Atlanta, Phillip M. Landrum, Jr., Landrum & Landrum, Jasper, for Georgia Marble Co.
Paul R. Jordan, Fine & Block, Atlanta, Hobart W. Mullins, Jasper, Ralph Merck, McCurdy & Candler, Decatur, Joab L. Kunin, Atlanta, James H. Webb, Jr., Glover & Davis, Peachtree City, for other respondents.
This appeal involves a statutory proceeding under OCGA § 44-9-70, which provides, in pertinent part, that a person or corporation engaged in the business of metal or mineral mining, or quarrying marble, granite, or any other stone, may obtain a right-of-way for a railroad across the lands of others "in order to operate his business successfully." 1
OCGA § 44-9-70 further provides that, "[a]ll proceedings in relation thereto shall be had and the damages shall be assessed and paid according to the method of condemning land provided in Title 22." Three alternative methods are provided in Title 22 for conducting a condemnation proceeding under the state's power of eminent domain, and assessing the amount of just and adequate compensation to be paid to the condemnee; of these three methods, a proceeding before a special master, OCGA § 22-2-100 et seq., was the method utilized here. 2 The special master entered an award recommending that the property interest sought to be condemned by the plaintiff be condemned by a judgment in rem upon payment into the registry of the court of $45,000, see OCGA § 22-2-110, representing the actual market value of the property interest sought to be condemned--the special master finding no consequential damages or benefits to the remaining property interests of the condemnees. See OCGA § 22-2-109 (c).
On appeal to the superior court, the superior court entered an order sustaining the findings of the special master. However, the court did not follow the special master's recommendation concerning the amount of compensation to be paid to the defendants, in that the defendants have a statutory right to a jury trial on this issue. See OCGA § 22-2-112, infra.
In Case No. 45172, the defendants/appellants/cross-appellees, Benton et al., appeal, and in Case No. 45173, the plaintiff/appellee/cross-appellant, Georgia Marble Company, cross-appeals. For reasons which follow, the judgment is affirmed in both cases.
The railroad line that is the subject of this case is approximately 3.5 miles in length, and, under the special master's award, it is approximately 30 feet in width. It consists of 11.406 acres, and it is part of a larger tract which is in excess of 1,000 acres. The surface and subsurface rights to the larger tract are owned in joint tenancy by the parties to this suit, 3 and possibly others. 4
The 3.5 miles of railroad track at issue here runs from what is known as Georgia Marble's Marble Hill quarry to the Tate, Georgia, railhead of the Seaboard System Railroad, previously known as the L & N Railroad Company. An 1884 lease granted the lessees and "their heirs and assigns" an exclusive right-of-way easement for a railroad line, beginning at the Tate railhead and running past the Marble Hill quarry to the Allred quarry, 5 which, at the present time, is jointly owned by Georgia Marble and others. With certain modifications, the 1884 lease was renewed and extended by leases executed in 1926 and 1955; however the leasehold agreement ultimately expired in 1984.
At its Marble Hill quarry, Georgia Marble produces a crushed and a ground limestone used in a variety of finished products. It uses the subject railroad track to transport a certain portion of both its finished and unfinished products from the Marble Hill quarry to the Tate station.
In regard to the question concerning the "necessity" on the part of Georgia Marble to have the exclusive right to use the railroad in order to ship products of the Marble Hill quarry to the Tate railhead, the special master found that the total average cost to Georgia Marble for maintenance of this railroad is approximately $200,000 per year, and that a loss of use of the railroad would result in reduced sales of products from the Marble Hill quarry with a consequent loss of approximately 30 employees at that quarry, as well as an approximate dollar loss of $1,000,000 per year on a pretax basis. The special master also found that in most instances, Georgia Marble's ability to be competitive with businesses selling the same products to customers in certain geographical areas depends upon Georgia Marble's ability to utilize the railroad. As an alternative mode of transportation, Georgia Marble could deliver its products to such customers by truck; however, as found by the special master, the additional expenses which would be thereby incurred by Georgia Marble would result in the previously described reduction in its ability to compete.
Consequently, the special master found that exclusive use of the railroad by Georgia Marble is necessary, and, therefore, this OCGA § 44-9-70 proceeding is likewise necessary.
Prior to the holding of the jury trial on the issue of valuation, the superior court entered an order addressing the "many unique and complex issues" which the court found to be raised in exceptions to the special master's award filed by certain of the defendants. The superior court sustained the special master's overruling of the defendants' challenges to the constitutionality of OCGA § 44-9-70; this ruling was based upon this court's decision in Jones & Co. v. Venable, 120 Ga. 1, 47 S.E. 549 (1904).
Citing Kellett v. Salter, 244 Ga. 601, 261 S.E.2d 597 (1979), the court further concluded that, since Art. I, Sec. III, Par. II, of the Georgia Constitution, concerning "private ways" in cases of "necessity," does not establish any requisite criterion of "necessity" for the taking, OCGA § 44-9-70's definition of "necessity," based upon the need of the plaintiff for the right-of-way in order to operate its business successfully, is the appropriate standard to be applied here. Based upon what the court below referred to as "uncontroverted evidence" that Georgia Marble had met the requisite standard of necessity for a private taking under OCGA § 44-9-70, the court approved the special master's finding in this regard.
One of the defendants' arguments has been that, as a matter of law, Georgia Marble cannot establish "necessity" for the taking, since Georgia Marble, with a cotenancy interest in the underlying estate, has a mutual and nonexclusive right to use the railroad. 6 The court rejected this contention, although it noted that Georgia case-law authority on this specific issue is sparse.
The court further concluded that in the special master's award, Georgia Marble was not granted fee-simple title to the 11.406-acre tract, as suggested by the defendants, but rather that Georgia Marble was granted a perpetual, as well as exclusive easement for the purpose of the maintenance and operation of the railroad.
The court went on to hold that OCGA § 44-9-40, providing for the grant of private ways across the lands of another when any person or corporation of this state owns an interest in real estate and has no reasonable means of access, ingress, and egress to such property, is inapplicable in this case, and, therefore, the requirement contained in OCGA § 44-9-40 (a), that private ways shall not exceed 20 feet in width, is likewise inapplicable.
Finally, the court rejected Georgia Marble's argument that the various leases granted it an irrevocable, permanent railroad right-of-way. And, the court ruled that, since the various items of hardware which compose the railroad track and ancillary equipment are trade fixtures, which may be removed by the tenant, the defendants are not entitled to compensation for the value of these improvements made at Georgia Marble's expense.
The facts, the various applicable statutory and constitutional provisions, and the case law in this area subsequently will be discussed and elaborated upon, insofar as is necessary for resolution of the issues presented in these appeals.
In their appeal, the appellants raise, in essence, four issues. The first is whether the General Assembly is authorized under the Georgia constitutional provision concerning private ways to authorize the taking of such ways under variable "necessity" standards. The second is whether Georgia Marble's cotenancy interest in the underlying fee precludes it from condemning the easement. 7 The third is whether the condemnees are entitled to compensation for improvements to the subject property if condemnation of the easement is allowed. The fourth issue concerns the extent of the appellants' constitutional right to jury trial in this proceeding.
1. We hold that, under the decision of this court in Jones & Co. v. Venable, supra, OCGA § 44-9-70's "necessity" standard, which is based upon the successful operation of the applicant's business, is a valid exercise of the General Assembly's state constitutional authority with respect to the declaration of private ways of necessity. 8
In the Venable case, the plaintiff was a partnership engaged in the operation of a granite quarry, which had been leased from the owners for a period of five years. Under the authority of § 650 of the Political Code, the plaintiff instituted a proceeding against adjacent property owners for condemnation of a railroad right-of-way across their land. Section 650 of the Political Code, a predecessor statute to OCGA § 44-9-70, provided "that a person or corporation actually engaged in [the business of...
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